CL Finance v Questioner

[shakespeare62]

If CL F claim they own the debt, then they have bought the rights AND the obligations.

 

I believe you can make the ppi claim to CL F directly as the PPI was part of the agreement. They'll kick and scream of course ..but ...

 

Comments anyone ?

[shakespeare62]

Here's a snippet on rights and obligations u can adapt ..

 

"If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties."

[questioner]

Utterly great stuff S - many thanks.

 

Do you feel it best to wait with the PPI attack untill CL address the illegibility and enforcibility concerns - or alternativley go at them now even though the account number is wrong? This is a bit tricky here so I need to get it right..

 

Very good letters that I will incorporate with great pleasure.

 

I think its coming clearer to me now.

 

We ask for the PPI back and if they cough up they have inadvertantly admitted that the agreement is corrupt/unenforcable due to this PPI miselling, which breaches s18 - yep?

[questioner]

I have just had a letter off CL saying that they are investigating my complaint about them to FOS.

 

Is it best to write to CL keeping the PPI claim for a refund seperate to the potential CCA enforcilility issue or is it ok to include it all in one sweeping letter?

Edited September 8, 2009 by questioner

[questioner]

I am seeking to address both issues of the dodgy agreement docs plus PPI misselling here - see if it works

 

 

--------

Dear CL

 

This account is, as you are fully aware, in dispute due to no “easily legible” documentation as I have requested since xxx June 2009.

 

The documentation that you have forwarded to me does not conform to my CCA request s 78. I cannot interpret these two badly-scanned copies (which may even, I believe, be unconnected to each other) so I perceptibly can’t be expected to make any well-informed opinion as essential authenticity.

 

However, from what little I can ascertain - the agreement number on the 1st page of the agreement sheets you have provided appears to be entirely different to the account number used by both parties within all previous correspondence. What exactly is the meaning of this action?

 

I note also that this particular agreement is a Multiple Agreement and that the monthly repayment amounts for PPI and the repayment amounts for the cash loan should have been stated separately and not lumped together. Under a regulated Credit agreement, amount of credit and charges for credit itself must be itemised independently. They can be summed in the total amount payable. However, the agreement in question is missing prescribed terms for monthly repayment amounts, for PPI and for the cash loan, which should be listed separately. Prescribed terms must be present and correctly stated for all pre 2007 agreements - otherwise they are unenforceable under s127(3) of the Consumer Credit Act 1974 (as amended) and as per the House of Lords case: Wilson & Ors v. Secretary of State for Trade and Industry[2003] UKHL 40 (10 July 2003)

 

I moreover quote, for your information, from the following Court of Appeal ruling on multiple agreements below.

 

London North Securities Ltd v Tony James Meadows & Anor [2005] EWCA Civ 956 (27 July 2005)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2005/956.html

 

To quote from LORD JUSTICE LLOYD in that case:

 

“49. In this context it is also necessary to note the provisions of section 18 of the Act dealing with multiple agreements, under which a consumer credit agreement which has features which bring it within more than one category of agreement mentioned in the Act may fall to be treated as including several separate agreements. Section 18(1) to (3) are as follows: ....”

 

“50. On that basis, and given that the several categories in section 11(1) and (2) are different categories for this purpose, it appears that the agreement between Home Loans (Northern) and Mr and Mrs Meadows falls to be regarded as three separate agreements, one within section 11(1)(b) as regards the £750, another within section 11(1)©, as regards the arrears, and the rest within section 11(2).”

 

“ 69...It follows that we dismiss the appeal because, if the insurance premium was part of the total charge for credit, as we hold, then the amount of credit under the agreement was incorrectly stated. It should have been stated as £5,000, not £5,750. It is agreed that this is a breach of the Act which cannot be overcome.”

 

“71...Accordingly, we dismiss this appeal on the sole ground that, although the amount paid to discharge the arrears was part of the credit, the amount paid by way of the insurance premium was part of the total charge for credit, not of the credit itself, and therefore the amount of credit was incorrectly stated in the credit agreement and the credit agreement is unenforceable. ”

 

 

This significant mistake alone on the agreement you have sent to me undoubtedly breaches Section 18 of the CCA and makes this agreement enforceable. Furthermore, this vital disclosure would also render you unmistakably liable for any reimbursement over PPI amounts already removed.

 

I believe that this old and defective agreement, which appears from what I can ascertain with some difficulty, to be a pasted –up version of someone else’s agreement. It holds numerous errors, making it even more unenforceable under law. I will be able to properly establish these errors in greater detail more clearly when you finally manage to supply genuinely readable data as I have fairly requested previously from you.

 

Request for return of Payment Protection Insurance

 

You claim that this agreement is specific to me, therefore the following will apply to you.

 

In light of the above concerns regarding this account I make the following request to you.

 

Payment Protection Insurance [PPI] with added interest amounts to a total of £xxxxxx So far as I am aware and judging by the agreement you have sent to me I was never informed that I had to take out PPI at the same time as this or any other loan or not at all.If you are alleging that this document relates to me then I am most concerned that the sales assistant who sold this policy had no financial background and the policy was not sold in the client’s best interests. If it relates to me then I have pressing concerns including the fact that I was self-employed at the time and would have deemed such a policy of insurance to be unacceptable to my requirements. The length of the policy of insurance would I believe have been perhaps no more than 5 years (common for block insurance premiums) which would also make this 84 payment instalment period worthless as an effective cover policy.

For your information, I have never been advised by any lender that I could obtain insurance elsewhere to cover myself for such a commitment or shown any comparisons for other products in the industry, which may have been more competitive or better suited than the one specified on this questionable agreement. However I deem that I was already insured being self-employed at the time and I have never been consulted by any lender over this eventuality. This amounts to serious misselling of PPI.

 

Representatives from any bank have never explained to me that the policy premium, on this alleged or any other agreement, would be paid upfront as a single BLOCK premium and would be added to my debt and attract interest from the outset.

 

I believe that a lender creating such an agreement should have disclosed that the single premium policy, did not give a pro-rata refund in event of early settlement. I have never been informed that there were alternative options to any single premium policy, i.e. that I could take a pay monthly one.

 

No attempt has ever been made to establish if such product allegedly provided was fit for purpose, suitable for my individual needs or if indeed at all. No inquiry was made as to whether I had pre-existing insurance for accident, illness or unemployment; bearing in mind that I was self-employed at the times stated on this alleged policy conception this misselling would have been totally outrageous.

 

I have never received full information from any lender on what such an alleged policy would or would not cover; I was not given a copy of any insurance policy, nor were any rights to cancel ever explained. Clearly the lender who crafted this dubious policy manifestly failed in their fiduciary responsibilities, and their duty of care.

 

With reference to recent OFT and FSA investigationsregarding the misselling of PPI by finance companies, I now believe that the policy details that you have forwarded to me was missold with this high-priced insurance policy, which I personally would never have required. I believe that in this instance the lender has therefore failed in the serious duty of disclosure. Such a failure to disclose is clearly a misrepresentation at common law.

 

I also note here:

GE Capital Bank Ltd: Fined £610,000 in January 2007 for inappropriate sales of its store cards and credit cards.

As you are specifically seeking to attach this problematic account to me I am therefore requesting a full reimbursement of all premiums, and subsequent interest on these payments, that I have presumably paid to date, as I believe I have will have been deprived of this money. I also expect 8% statutory interest, the amount a court would award, to be added to each payment made.

 

I am therefore writing to ask you to fairly refund the premium paid together with interest equal to your APR at the time under the accepted principle of mutuality and reciprocity. I would also like to claim statutory compensation in view of the fact that I have presumably been deprived of the cash over that period thanks to this dubious and unenforceable alleged agreement.

Financial Ombudsman Service

 

Please note: If I do not receive a constructive response from you I will consider pursuing this claim through the Financial Ombudsman, etc.

 

I may add herein thatif it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

In a nutshell then: you have to date only provided a largely illegible copy of some unconvinced agreement, which you claim is a properly executed agreement specific to me. I challenge this as wholly unenforceable due to the above reasons and more to be exposed when you finally honour my lawful request for properly legible documentation.

 

However, from what little I can ascertain from the first page on this documentation I believe that it proves to be a serious case of PPI misselling, which must be addressed by you forthwith.

 

You have therefore given me evidence of an unenforceable credit agreement, plus details of PPI misselling which you state is specific to me.

 

 

 

 

 

????????????????

 

 

 

Probably rubbish - but I am trying guys...

[shakespeare62]

if it was me, I'd be inclined to split up the unenforceability dispute, from the PPI claim i.e. make the them 2 separate letters.

 

Likewise I'd be inclined to give everything some clear headings ..e.g. ACCOUNT IN DISPUTE etc. Remember you're probably dealing with "Monkeys chewing peanuts".

Edited September 8, 2009 by shakespeare62

[shakespeare62]

Questioner, Here's a sample letter you could adapt for the illegibility issue regarding your s78 request

 

I'd be inclined to send the illegibility complaint first - by recorded delivery preferably, or failing that, obtain a free certificate of posting from a royal mail post office. Keep the certificate as proof of posting.

 

The sample letter I've sent has the advantage of being specific on exactly which regulation CL F have breached.

 

Once you've sent off that letter, we can start 'tidying up' your other stuff, i.e. the unenforcable dispute letter, and the ppi re-claim.

 

It's your call obviously. I can offer suggestions to try and help...

 

Remember to head it clearly ACCOUNT IN DISPUTE.

copy_agreement_illegible.doc

[shakespeare62]

Hopefully others "will look" in too...

[questioner]

Hey thanks Shakespeare - I will look at this.

 

I can, no problem, split up the letters but I will still keep to the core point that I can only make out so much due to the illegibility issue, which is quite true.

 

I did write in to request a legible copy ages ago, but they ignored this . I can back that up with yours though .

 

Love the "peanuts" bit - sadly you are so right though.

 

 

Right so now I have told then several times that the account is in dispute due to docs that cannot be read properly. I will now need to polish up the next 2 letter re unenforcibility issues and the PPI one . I want to crack on against them but it may be wise to wait to see if I can get a more legible copy - oh I hate waiting though.

 

It gets very tricky due to the fact that the agreement number doesn't match what's on all letters too; that why why I was trying to graft it all in together.

 

 

 

the unenforcable dispute letter,

 

Ok yep - that can come next I reckon - save the PPI for the main course. Any suggestions to improve what I have so far joted down above would be greatly appreciated too.

Edited September 9, 2009 by questioner

[questioner]

I hope this seems logical without saying too much?

 

Possibly it can be chopped down a bit too? Perhaps bullet points - I dont know?

 

-------------

 

This account is, as you are fully aware, in dispute due to no “easily legible” documentation as I have requested several times since xxxxxx

 

I reiterate that the documentation that you have forwarded to me does not conform to my CCA request s 78. I cannot read these two badly-scanned copies (which may even, I believe, be unconnected to each other) so I perceptibly can’t be expected to make any well-informed opinion as essential authenticity.

 

However, from what little I can ascertain - the agreement number on the 1st page of the agreement sheets you have provided appears to be entirely different to the account number used by both parties within all previous correspondence. What exactly is the meaning of this action?

 

I note also that this particular agreement is a Multiple Agreement and that the monthly repayment amounts for PPI and the repayment amounts for the cash loan should have been stated separately and not lumped together. Under a regulated Credit agreement, amount of credit and charges for credit itself must be itemised independently. They can be summed in the total amount payable. However, the agreement in question is, from what little I can ascertain on this poor quality document, missing prescribed terms for monthly repayment amounts, for PPI and for the cash loan, which should be listed separately. Prescribed terms must be present and correctly stated for all pre 2007 agreements - otherwise they are unenforceable under s127(3) of the Consumer Credit Act 1974 (as amended) and as per the House of Lords case: Wilson & Ors v. Secretary of State for Trade and Industry[2003] UKHL 40 (10 July 2003)

 

I moreover quote, for your information, from the following Court of Appeal ruling on multiple agreements below.

 

London North Securities Ltd v Tony James Meadows & Anor [2005] EWCA Civ 956 (27 July 2005)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2005/956.html

 

To quote from LORD JUSTICE LLOYD in that case:

 

“71...Accordingly, we dismiss this appeal on the sole ground that, although the amount paid to discharge the arrears was part of the credit, the amount paid by way of the insurance premium was part of the total charge for credit, not of the credit itself, and therefore the amount of credit was incorrectly stated in the credit agreement and the credit agreement is unenforceable. ”

 

This significant mistake alone on the agreement you have sent to me undoubtedly breaches Section 18 of the CCA and makes this agreement enforceable. Furthermore, this vital disclosure would also render you unmistakably liable for any reimbursement over PPI amounts already removed.

 

I believe that this elderly and imperfect copy agreement, which appears from what I can determine with some difficulty, to be a pasted –up version of someone else’s agreement. It holds numerous errors, making it even more unenforceable under law. I will be able to properly establish these errors in greater detail and more evidently when you ultimately manage to deliver genuinely readable data as I have fairly requested previously from you. How long must I wait for you to honour my CCA request for properly legible material?

 

To address this issue in brief: you have to date only provided me with a largely illegible copy of some dubious agreement, which you claim is a properly executed copy of an agreement specific to me. I challenge this material as being utterly unenforceable, due to the above reasons and more to be exposed when you finally honour my lawful request for properly legible documentation.

 

 

 

---------

 

I think the main point is that the account has an alien number on which begs the question why. This is possibly great news for unenforcilility issues yet puts PPI repayments in a funny light. I am a bit confused here.

Edited September 15, 2009 by questioner

[citizenB]

Looks as though are receiving a fair amount of advice on this one. The PPI issue looks good. I have no understanding of the multiple agreement issue. IMHO, if there are two different parts to a document then a signature should be obtained for both. But others more experienced on this have gone in to further detail elsewhere.

 

If you are going to pursue a PPI claim, then it might be a good idea to start a thread in that forum as well. You can link back to this thread if areas overlap and vice versa

[questioner]

CL are still ignoring all correspondence (including a formal complaint from me from over a month ago) over the account being in dispute via the CCA request being illegible.

 

They have also now sent me a Statement of account which runs from October 08 to July 09

[vint1954]

Write to them requesting a copy of their formal complaints proceedure as they have not responded.

 

Complain to the FOS and OFT.

 

The anual statement is now a legal requirement.

[questioner]

Write to them requesting a copy of their formal complaints proceedure as they have not responded.

 

Complain to the FOS and OFT.

 

The anual statement is now a legal requirement.

 

 

VINT - yep, complaints have gone off and CL wrote about 17 days ago saying that FOS asked them to address the issue in house. CL said they would reply in 10 days but still - NOWT!

 

I have several issues in the offing over this one, ie s18 probs not to mention the totally unknown agreement number on the heading on the first page of the crappy 2 pager they sent in.

 

My suspicion is that this scan is a hasty paste up of someone elses agreement or just a made up number they threw in. Second page is very hard to read looks like a microfiche thingy with the black smears. You would have thought they would have had the insight to at least pitch in the right number on the recreated doc.

 

Just hanging about twiddling the ol' thumbs waiting for 'em to give me a target to shoot at now...

 

It is illogical that if they really require folks to pay them funds they only have to show us a proper true copy of an alleged original agreement.

 

If I was in their position that is what I would do to cut out any delay in getting me money back in... otherwise what does this tell us???

Edited September 26, 2009 by questioner

[vint1954]

VINT - yep, complaints have gone off and CL wrote about 17 days ago saying that FOS asked them to address the issue in house. CL said they would reply in 10 days but still - NOWT!

 

I have several issues in the offing over this one, ie s18 probs not to mention the totally unknown agreement number on the heading on the first page of the crappy 2 pager they sent in.

 

My suspicion is that this scan is a hasty paste up of someone elses agreement or just a made up number they threw in. Second page is very hard to read looks like a microfiche thingy with the black smears. You would have thought they would have had the insight to at least pitch in the right number on the recreated doc.

 

Just hanging about twiddling the ol' thumbs waiting for 'em to give me a target to shoot at now...

 

It is illogical that if they really require folks to pay them funds they only have to show us a proper true copy of an alleged original agreement.

 

If I was in their position that is what I would do to cut out any delay in getting me money back in... otherwise what does this tell us???

For the incorrect agreement number, you may consider:

 

Dear Sir/Madam

 

Account no:

 

You have contacted me/us regarding the account with the above reference number, which you claim is owed by myself/ourselves.

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name). With this account number.

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt relating to the above account number in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

[questioner]

For the incorrect agreement number, you may consider:

 

Dear Sir/Madam

 

Account no:

 

You have contacted me/us regarding the account with the above reference number, which you claim is owed by myself/ourselves.

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name). With this account number.

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt relating to the above account number in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

 

Vint - brill thanks SO MUCH - I shall now add the bulk of this to a letter that I have in the offering .

 

Q

[questioner]

I have just had another note of CL which includes a slightly better copy of the agreement.

 

However the GE account number in their letter once again IS NOT the one on the agreement sheet.

 

They also say that the first copy was not easily legible and... "this is due to the copy of the agreement being microfiched for storage".

 

They say their pages are enforcable and that they will issue court proceddings if necessary.

 

Does this alter anything on Vint's suggested letter above?

Edited October 5, 2009 by questioner

[citizenB]

Q, if the account number is one you dont recognise then no, Vint's letter will still be good to use.

 

So far, you have an illegible agreement

an agreement that is not so illegible

 

but both of them carry PPI which has possibly been mis sold. As all the sections have been completed prior to your signing. If you did sign it that is...

 

The account number on both is not one that you recognise or has been communicated to you previously. You have not been advised of any account number alteration.

 

There is a possibility this is a multiple agreement (s18).

 

who is the original creditor ?

 

This looks suspiciously like a Bank of Scotland loan document.

[vint1954]

I have just had another note of CL which includes a slightly better copy of the agreement.

 

However the GE account number in their letter once again IS NOT the one on the agreement sheet.

 

They also say that the first copy was not easily legible and... "this is due to the copy of the agreement being microfished for storage".

 

They say their pages are enforcable and that they will issue court proceddings if necessary.

 

Does this alter anything on Vint's suggested letter above?

hi Q,

 

I think you need to stick with challenging the agreement number and PPI as suggested by Citizenb.

[questioner]

Cheers Vint

 

Yep, the number is the first thing - I shall let you know what they say.....

 

Q

[questioner]

"who is the original creditor ?"

 

 

None other than GE........

 

GE Capital Bank hit with £610,000 PPI fine

 

 

 

The Financial Services Authority (FSA) said GE Capital Bank had failed to put adequate systems in place to control sales of payment protection insurance (PPI), which is usually sold alongside credit cards and loans.

It said the company had failed to make sure customers were aware the cover was optional, and had failed to ensure its staff were properly trained to sell the product.

As well as providing credit cards, GE Capital Bank provides credit through store cards and in-store finance packages.

 

 

[questioner]

"This looks suspiciously like a Bank of Scotland loan document."

 

Yes CB - Retail Financial Services is a venture between GE Capital Bank and the BOS.

 

This explained the likeness you are suspicous of.

[citizenB]

"This looks suspiciously like a Bank of Scotland loan document."

 

Yes CB - Retail Financial Services is a venture between GE Capital Bank and the BOS.

 

This explained the likeness you are suspicous of.

 

 

No wonder they got themselves in such a fuddle.

[questioner]

I have now checked several times again......

 

I asked for the copy docs of an agreement number which started with 98.........

 

The agreement number on the microfiched scans they sent to me starts with 34.........

 

The number is certanly not the same and I have never seen anything to say it was changed for any reason.

 

All I have is a Notice of Assignment from a while backfrom CL saying they took the agreement ( 98........) from GE.

 

So why did they respond to my CCA request with the wrongly numbered copy agreement? Am I supposed to pay up and smile when the number is not the same as the one being chased by them?

 

Still waiting for them to give a reason about this significant problem, rather than typical DCA threats to pay up or else.

 

Mystery? Anyone else seen such a thing?

[vint1954]

I have now checked several times again......

 

I asked for the copy docs of an agreement number which started with 98.........

 

The agreement number on the microfiched scans they sent to me starts with 34.........

 

The number is certanly not the same and I have never seen anything to say it was changed for any reason.

 

All I have is a Notice of Assignment from a while backfrom CL saying they took the agreement ( 98........) from GE.

 

So why did they respond to my CCA request with the wrongly numbered copy agreement? Am I supposed to pay up and smile when the number is not the same as the one being chased by them?

 

You can only assume that it is all they have got.

 

Still waiting for them to give a reason about this significant problem, rather than typical DCA threats to pay up or else.

 

Mystery? Anyone else seen such a thing?

I think they just changed the account number when they took it over. They should have had you sign again for the new one!